May 21, 2012

The legislative session is over. How did the Missouri Legislature fare in the area of health care?

The Good: The Legislature will submit to voters a referendum that would block the governor from unilaterally implementing ObamaCare. I have written about this in the past and had researched last September what the governor could do unilaterally. I expect Missourians will add an exclamation point to the state’s opposition to the Patient Protection and Affordable Care Act (PPACA) with the referendum, not unlike Missourians did with Proposition C in 2010. If passed, the referendum will deny the governor the ability to impose an ObamaCare health insurance exchange in Missouri.

Moreover, Missouri senators defeated what would have been an extension of the expensive and burdensome kindergarten optometrist mandate, an issue which I testified against. An unnecessary and inefficient imposition on Missouri’s families, the bill’s failure was the right thing for Missourians and Missouri families. This is an all-too-rare example of removing licensing-related rules and regulations in Missouri. I hope we have more of this in the future.

The Sad: Late last week I worried here that a bill allowing volunteer health organizations access to medically underserved Missourians would die due to a small potatoes dispute in one of the bill’s sections. To be clear, both the House and the Senate passed nearly identical versions of the bill. And yet, it died. It is a shame, bordering on shameful that the chambers could not reconcile their differences.

I know disappointments are inevitable, but the grass roots have come along much further than we think.
I see the influences made on the progressive machine, and am impressed in the short time, yet very hard work, it took to make a difference.
There is so much more to do, but I consider the work successful, while looking forward to even more powerful action before August and November.
That is when we can win and really move things along.
It is so vital to our survival as a Republic, with all of its blessings.
God bless the U.S.A., particularly, Missouri!

You call the bill that would have nullified the Affordable Care Act “really bad.” I’m interested to hear your reasoning. Do you think that states are bound to submit to unconstitutional acts of Congress?

James Madison and Thomas Jefferson clearly thought so – you may not have realized it, but HB 1534 was derived almost word-for-word from the resolutions Madison and Jefferson drafted to nullify the Alien and Sedition Acts in 1798. Furthermore, the debates at the ratifying conventions of several states indicated the widespread opinion that states would reserve the right to disregard federal laws they deemed to violate the Constitution. To be sure, it’s not at all clear that the Constitution would have been ratified in the first place if the people believed that the states would be forced to submit to the federal government’s ideas about its own authority.

So, in short, I agree with the founders. I’m interested to hear why you think they were incorrect.

In fact I am aware of both the history surrounding nullification as well as why the bill’s language was crafted as it was — among other reasons, to facilitate the sort of “how could you disagree with [these] founders” arguments you’ve posited here. Of course, years of jurisprudence and history, to say nothing of the disagreement among the founders, have intervened over the last 200+ years which have pretty well clarified the legal ambiguities surrounding the nullification question, decidedly against. You disagree, and you’re welcome to promote and litigate your position. But, trying to resurrect defunct theories like nullification, especially in the ObamaCare context, seems to me to be imprudent at best, as to both the policy and the politics. It not only confuses the issue but serves to deligitimize serious and substantive attempts to mitigate ObamaCare’s harms. That’s bad legislation. That’s why I classified it as such.

As you point out, some people do get frustrated when you focus on what the founding generation had to say about our system of government. After all, those words can seem so… inconvenient. And perhaps archaic. But if you refuse to take their ideas seriously, where does that really leave you in terms of talking about the Constitution? You could just as easily say that “years of jurisprudence and history” have also “clarified the legal ambiguities surrounding” a great many constitutional questions – such as, say, the federal government’s authority to use the commerce clause to regulate activity (or non-activity, as the case may be) that has no serious connection to interstate commerce. I sincerely hope you wouldn’t draw THAT conclusion… or would you?

So why don’t you try again? Instead of hand-waving your way to the position that Jefferson’s and Madison’s words are defunct simply because the federal government has (more or less successfully) sought for 200+ years to render them defunct, explain WHY you think Jefferson and Madison were wrong. Or if you think that the correctness or incorrectness of their position is simply irrelevant in light of the time that has past since the idea of nullification was more broadly accepted, explain how you decide when matters of constitutional theory or political philosophy (such as, say, property rights or the right to earn a living) would best be avoided because they might “deligitimize serious and substantive attempts” to address modern policy concerns.

I didn’t “point out” any such thing, and unfortunately that line of attack typifies most of what you have to say subsequent. I’ll again say that the founders were not uniform in their view and that the history is far more complicated — and far more conclusive — than you let on.

I’d also recommend you explore Madison’s actual views on nullification before holding him up in your appeal to authority.

Awe come on Patrick, engage. From a principled policy perspective explain why you think the state and the People have no choice but to kowtow to federal officials who feel no compunction to be constrained by the Constitution.

And from a practical perspective please explain how we can ever hope to put the federal government back into the constitutional box the Founders intended for it if we don’t revisit the “centuries-old notions” which are the foundation of American governance.

[...] A few weeks ago, we had a lengthy conversation in Show-Me Daily’s comments about whether it would be constitutional for Missouri to nullify the Affordable Care Act (ObamaCare). Then last week, the Heartlander published a story on the “nullification” issue wherein I was quoted reiterating my concerns with such proposals. (For context, my Heartlander remarks were drawn from an interview I gave the publication in early May, before Missouri’s legislative session ended.) [...]

[...] Writing for Hot Air’s Green Room last week, Patrick Ishmael declared that nullification was unconstitutional and cited a number of columns from organizations such as The Heartlander and The Heritage Foundation as proof. Ishmael’s post was mostly a continuation of a discussion, as he calls it, between him and David Roland, of the Freedom Center of Missouri, regarding a bill in the Missouri house to nullify the Affordable Care Act (Obama care). You can view that exchange here. [...]

[...] Writing for Hot Air’s Green Room last week, Patrick Ishmael declared that nullification was unconstitutional and cited a number of columns from organizations such as The Heartlander and The Heritage Foundation as proof. Ishmael’s post was mostly a continuation of a discussion, as he calls it, between him and David Roland, of the Freedom Center of Missouri, regarding a bill in the Missouri house to nullify the Affordable Care Act (Obama care). You can view that exchange here. [...]

[...] Writing for Hot Air’s Green Room last week, Patrick Ishmael declared that nullification was unconstitutional and cited a number of columns from organizations such as The Heartlander and The Heritage Foundation as proof. Ishmael’s post was mostly a continuation of a discussion, as he calls it, between him and David Roland, of the Freedom Center of Missouri, regarding a bill in the Missouri house to nullify the Affordable Care Act (Obama care). You can view that exchange here. [...]

[...] Writing for Hot Air’s Green Room last week, Patrick Ishmael declared that nullification was unconstitutional and cited a number of columns from organizations such as The Heartlander and The Heritage Foundation as proof. Ishmael’s post was mostly a continuation of a discussion, as he calls it, between him and David Roland, of the Freedom Center of Missouri, regarding a bill in the Missouri house to nullify the Affordable Care Act (Obama care). You can view that exchange here. [...]

[...] the Heritage Foundation notes, the nullification question was decided far more conclusively than some have suggested, and was decided in substance by the founding generation and its immediate successors. The right [...]

[...] Writing for Hot Air’s Green Room last week, Patrick Ishmael declared that nullification was unconstitutional and cited a number of columns from organizations such as The Heartlander and The Heritage Foundation as proof. Ishmael’s post was mostly a continuation of a discussion, as he calls it, between him and David Roland, of the Freedom Center of Missouri, regarding a bill in the Missouri house to nullify the Affordable Care Act (Obama care). You can view that exchange here. [...]